53 F.3d 1129 (10th Cir. 1995), 94-6128, United States v. Torres

Docket Nº:94-6128, 94-6140, and 94-6152.
Citation:53 F.3d 1129
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond TORRES, Joseph S. Aflleje, and Barbara Aflleje-Torres, Defendants-Appellants.
Case Date:April 25, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1129

53 F.3d 1129 (10th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond TORRES, Joseph S. Aflleje, and Barbara

Aflleje-Torres, Defendants-Appellants.

Nos. 94-6128, 94-6140, and 94-6152.

United States Court of Appeals, Tenth Circuit

April 25, 1995

Certiorari Denied June 19, 1995.

See 115 S.Ct. 2599.

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Frank Michael Ringer (Rozia McKinney-Foster, U.S. Atty., with him, on the brief), Asst. U.S. Atty., Oklahoma City, OK, for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, Denver, CO, on the briefs for Raymond Torres; Raymond Torres filed a pro se supplemental opening brief.

Jerome T. Kearney, Asst. Federal Public Defender, Oklahoma City, OK, for Joseph S. Aflleje.

Thomas D. McCormick, Oklahoma City, OK, on the brief, for Barbara Aflleje-Torres.

Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and OWEN, [*] Senior District Judge.

BRORBY, Circuit Judge.

Defendants-appellants Joseph Aflleje, Barbara "Bobbie" Aflleje-Torres, and Raymond Torres (collectively "the defendants") were convicted of multiple drug-related offenses. They appeal, challenging their respective convictions and sentences. We treat their appeals together in a single, consolidated opinion because they stem from a common set of facts. See Fed.R.App.P. 3(b). We have jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a), and we affirm in part, reverse in part, and remand in part for resentencing.

BACKGROUND

On October 19, 1993, a federal grand jury for the Western District of Oklahoma issued a seventeen count indictment charging the defendants with conspiracy to possess with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine; distribution of methamphetamine and aiding and abetting the same; interstate travel in aid of racketeering; use of a communication facility to facilitate the distribution of methamphetamine; and money laundering. After the trial court granted motions for judgment of acquittal on five counts, the remaining counts were submitted to the jury, and the defendants were thereafter convicted on each count. The court sentenced Joseph Aflleje to 210 months imprisonment, while Barbara Aflleje-Torres and Raymond Torres each received 151 months imprisonment.

Construing the facts in the light most favorable to the government, the evidence reveals the following. Joseph Aflleje and his wife, and later ex-wife, Irene Aflleje, along with Mr. Aflleje's sister, Barbara Aflleje, and her husband Raymond Torres, were involved in a closely knit methamphetamine distribution ring. Most of the government's information about the defendants' drug operation was learned through the assistance of four accomplices--Irene Aflleje, her boyfriend Joe Clyde McLemore, Judy Ford, who was Mr. Aflleje's ex-girlfriend, and Shirley Brown--each of whom elected to plead guilty to lesser offenses in exchange for their agreement to cooperate with the authorities. The government's case against the defendants consisted of the testimony of these individuals, along with the testimony of several federal agents.

The government alleged the defendants were involved in a four-tiered vertically integrated drug conspiracy. Joseph Aflleje, the head of the methamphetamine distribution ring, would obtain quantities of methamphetamine from his suppliers in California, and he would then sell the drugs to Barbara Aflleje-Torres and Raymond Torres, who would sell them to Irene Aflleje and Joe McLemore, who eventually sold them directly to various buyers, including Shirley Brown. In May 1992, Barbara Aflleje-Torres and Raymond Torres left the United States to return to Guam, where they were born, because they were involved in private litigation concerning the ownership of a parcel of land located in Guam. When the Torreses left the country, the operation was reduced to three tiers, with Joseph Aflleje distributing directly to Irene Aflleje and Joe McLemore, who resold the drugs to buyers.

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The government alleged the defendants started this conspiracy to distribute methamphetamine in late 1989 and that it continued through the middle of 1992. Much of the evidence used to convict the defendants took the form of drug ledgers, notebooks, and calendars detailing many of these drug dealings. According to the testimony of Irene Aflleje, she kept these ledgers because most of the drugs she obtained from Barbara Aflleje-Torres and Raymond Torres in 1992 were fronted 1 to her, and the ledgers enabled her to keep track of both how much money she owed her suppliers and what quantities of drugs were being bought and ultimately resold. While these ledgers provided damaging evidence against Barbara Aflleje-Torres and Raymond Torres, they did not contain any references to Joseph Aflleje. Irene Aflleje testified, however, that Joseph Aflleje never fronted drugs to his direct buyers because he demanded that the money be mailed or wired to him at the same time he would supply the drugs. While the ledgers did not constitute evidence against Mr. Aflleje, the government introduced the testimony of the accomplices who testified they had been involved in personal drug dealings with him.

On July 6, 1992, shortly before this conspiracy ended, Shirley Brown was arrested in Lawton, Oklahoma, by members of the Comanche County Drug Task Force, working in conjunction with Agent Kenneth McCullough of the United States Drug Enforcement Agency. Ms. Brown subsequently agreed to cooperate with the authorities. She informed the agents that a Federal Express package containing drugs was being sent to an address in Lawton, Oklahoma, in the near future. Three days later, after this package arrived at the Federal Express office, law enforcement personnel obtained a search warrant from an Oklahoma court judge and took the package to the Oklahoma State Bureau of Investigation. The substance inside the package tested positive as methamphetamine. The officials then repackaged the drugs and prepared to make a controlled delivery of the package, which was addressed to the residence of Irene Aflleje and Joe Clyde McLemore. When this controlled delivery was made, officials arrested Irene Aflleje and Joe McLemore. They, along with Ms. Brown, subsequently agreed to cooperate, eventually resulting in the arrest, prosecution, and convictions of the defendants.

The primary defense strategy at trial was an effort to discredit the testimony of the defendants' accomplices who testified for the prosecution. Defense counsel thoroughly attempted to impugn the credibility of these witnesses by raising their drug use and their plea agreements, as well as emphasizing their overall unreliability as witnesses. This tactic ultimately proved unsuccessful, however, as the jury convicted the defendants on all twelve counts. This appeal ensued.

DISCUSSION

The defendants raise various challenges to the sufficiency of the evidence, to certain evidentiary rulings, and to several sentencing determinations.

I. Sufficiency of the Evidence

The defendants first challenge the sufficiency of the evidence to support their convictions on most, if not all, of the counts on which they were convicted. In reviewing the sufficiency of the evidence:

We view the evidence in the light most favorable to the government in order to determine whether all of the evidence, both direct and circumstantial, together with the reasonable inferences to be drawn therefrom, 'convinces us that a rational factfinder could reasonably have found' the appellant guilty of the crime charged beyond a reasonable doubt.

United States v. Chavez-Palacios, 30 F.3d 1290, 1293-94 (10th Cir.1994) (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979)). "[T]he evidence presented to support the conviction

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must be substantial; that is, it must do more than raise a mere suspicion of guilt." United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 142, 116 L.Ed.2d 109 (1991) (internal quotations omitted). In determining whether there was in fact some evidence in the record to support the jury's verdict, see United States v. Hoenscheidt, 7 F.3d 1528, 1530 (10th Cir.1993), we review the record de novo. See United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). Moreover, "[a]n appellate court may not decide the credibility of witnesses as that is the exclusive task of the fact trier.... Once the jury has spoken, this court may not reweigh the credibility of the witnesses." United States v. Youngpeter, 986 F.2d 349, 352-53 (10th Cir.1993); see also United States v. Uresti-Hernandez, 968 F.2d 1042, 1045 (10th Cir.1992) ("Credibility determinations are for the jury, not the appellate court"). By viewing the evidence in the light most favorable to the government, we necessarily assume the jury found the government's evidence credible.

A. Conspiracy

Joseph Aflleje and Barbara Aflleje-Torres challenge their convictions on count one for conspiracy to possess with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine, under 21 U.S.C. Sec. 846. 2

"A conspiracy conviction requires the Government to prove, that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, that the defendant knowingly and voluntarily became a part of it, and that the alleged coconspirators were interdependent."

United States v. Angulo-Lopez, 7 F.3d 1506, 1510 (10th Cir.1993) (citing United States v. Evans, 970 F.2d 663...

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